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Denmark to Close Down on Openness in Government Administration

BY Jon Lund | Wednesday, April 24 2013

Copenhagen (credit: JamesZ_/Flickr)

"No." Morten Bødskov, Denmark's Minister of Justice, was extremely clear in his testimony before a recent parliamentary committee hearing. He was responding to a simple question posed by a committee member: Under the new Freedom of Information Act that he had submitted to parliament, would documents revealing that employment minister Mette Frederiksen had withheld information from the public still be accessible? According to that information, recently brought to light by the Danish media, the number of unemployed who stood to have their benefits slashed by nearly 50 percent was more than double what the government had projected. With his "no," Bødskov acknowledged that the government's proposed changes to the existing freedom of information law would give it the power to hide uncomfortable facts.

What else is there to hide?

For some, Bødskov's laconic confession confirmed their suspicion that investigative reporters seeking to expose government malfeasance would be severely limited by the new law.

Jesper Tynell is a staff reporter for the DR, the Danish equivalent of the BBC. In 2010 he won the Cavling Prize, a.k.a. the "Danish Pulitzer," for exposing the previous government's having presented misleading data, deleted incriminating documents and misled parliament. If he had been trying to cover the story under the proposed new law, Tynell said, the story would "…definitely never have been exposed."

Other Cavling Prize winners, including prominent journalists Ulrik Dahlin and Anton Geist, suspect that several award-winning stories would have met the same fate.

And journalists are not alone in opposing the legislation. Ebbe Dal, head of the Danish Publishers Association, urges parliament to revise the law before it is put to a vote.

Tim Knudsen, professor of political science at the University of Copenhagen, recently said during an interview on DR television, that the act, if passed, "would increase the risk for illegal activities, irregularities, and manipulations that will remain uncovered."

Two paragraphs

The fierce criticism directed at the proposed changes focuses on two paragraphs of the legislation — numbers 24 and 27. Both address the right to request access to government documents, allowing ministers a significantly increased right to secrecy. Under the proposed new law, many documents described as "political advisory," rather than "factual," would be shrouded in secrecy.

Paragraph 27 deals with documents and correspondence that are generated during the legislative process between the executive branch and parliament. These would also be excluded from rights-to-access requests. This means that much — although not all — information about the workings of parliament would no longer be available to the public. For the founding fathers who wrote the Danish constitution in 1849, the principle of public deliberation in parliament was essential. As Tim Knudsen puts it, "Parliaments are supposed to be public. Otherwise we don't have a democracy."

But the wording of the bill does not exactly reflect a 2.0 worldview. Committee members who wrote the bill recommended implementing the legislation initially by making available open lists of electronic and paper mail exchanged between government officials. But if the administration has its way, the lists will be "dumb" lists — i.e., they will not include a search option for keyword inquiries.

Get it over with and move on

Despite heated debate and substantial opposition from the public, the legislation has the backing of two-thirds of parliament and so is likely to pass. Its supporters are derived from an unholy alliance of the governing Social Democrats, its coalition partners, and the major opposition parties in Denmark's multi-party system. The opposition hopes to win the next election, which might explain why it would be attracted to the idea of reduced government accountability.

The legislative process for the proposed law has also been less than transparent. Prominent political commentator Hans Engell, himself a former minister of defense, commented on a radio program that discussion of the bill had been held "in secrecy and with internal understandings."

Engell, too, expects that parliament will pass the law: "We have taken so many beatings in this case, let's get it over with and move on. No matter how much we scream, yell and complain, I'm positive we'll have a new law very soon."

Nevertheless, the bill's opponents have not quite given up. As of this writing, more than 64,000 people have signed an online petition calling for the legislation to be quashed. On Tuesday, meanwhile, 19 Danish newspaper editors, representing almost the entire print media, published a jointly authored blog post in which they urge the government to back away from the proposed legislation. Several prominent watchdog and media bloggers have written posts expressing their opposition to the legislation.

Civil servants to blame

Interestingly, politicians are not the driving force behind the proposed legislation. Rather, the bureaucracy itself is playing the leading role. Morten Bødskov, the minister who officially proposed the act, was a very vocal defender of openness only four years ago, before he took office. Now he has reversed his position, most likely as a result of influence brought to bear by members of the administration, who are now his closest advisers.

"I guarantee there's been pressure from top level civil servants," says Hans Engell. "These civil servants are no doubt saying, 'Dear politicians, please don't make this law too liberal.'"

If the inner workings of the Danish administration were only about straight facts and solid interpretations, the need for secrecy would be far less urgent. But this is not the case.

In Denmark, career civil servants are de facto political appointees who remain at their posts from one government to the next. Ostensibly they are appointed based on merit and are supposed to be neutral civil servants who deliver political-tactical advice to elected politicians, but in practice this is not always the case. The line between policy formation and implementation is inherently blurred, and this is where the media can make their lives difficult — i.e., by implying that they are giving policy advice that is politically motivated. And so these civil servants prefer to play it safe, which is why they want to prevent the media from accessing documentation that would allow them to ask uncomfortable questions.

As department manager at The Danish School of Media and Journalism Oluf Jørgensen said during a radio talk show about the controversial legislation, "This interlacing of professional policy advice and political-tactical advice means that no one wants any additional openness, so you keep everything behind closed doors, including the professional basis for the political decisions made. I'm absolutely sure that's the way it is."

Jørgensen is currently involved in a research project that compares openness in Scandinavian countries. He finds Denmark lags significantly behind Sweden, Norway, and Finland.

In Denmark today, requests for access to public files are often delayed for months, even though the law stipulates that documents must be produced within 10 days. There is "a complete lack of respect for openness as is decisive in a democratic society," says Oluf Jørgensen. In Sweden, he pointed out, authorities typically respond to requests that fall under freedom of information legislation within 24 hours. "There's simply a completely different culture among Swedish civil servants. Openness is treated as a, I'd almost say, sacred principle."

The far less open attitude of Danish civil servants goes hand-in-hand with their combined professional policy and political-tactical role. Since they are not answerable to the electorate, they are far more powerful than elected politicians. This is an organizational setup that can be traced directly to the inception of Danish democracy in 1849, when the king peacefully handed over power to a newly formed parliament, while allowing government administration to continue as if nothing had changed.

Something rotten

The new Danish Freedom of Information act is not all bad. On the positive side, local and municipal administrations will now be required to allow requests for access, as are state-owned companies such as the Danish railways and the Danish energy supply. For the openness of the central government, however, there is not much good to be said. Something is rotten in the state of Denmark.

Correction: In a previous edition of this article, DR journalist Jesper Tynell was credited with having won the 2010 Cavling Prize for his reporting on the government's handling of immigration requests from stateless Palestinians. In fact he won the prize for his report on the government's having presented misleading data, deleting incriminating documents and misleading parliament. The text has been changed to reflect the correction.

Jon Lund is a columnist for the leading Danish newspaper Politiken and chairman of DONA, Danish Online News Association.

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